PUBLIC INTEREST DISCLOSURE ACT 2018 PRESENTATION TO AUSTRALIAN - - PowerPoint PPT Presentation

PUBLIC INTEREST DISCLOSURE ACT 2018

PRESENTATION TO AUSTRALIAN LABOUR AND EMPLOYMENT RELATIONS ASSOCIATION OF SA

Michael Riches Deputy Commissioner 27 August 2019

WHISTLEBLOWERS PROTECTION ACT 1993

• Groundbreaking legislation
• First of its kind in an Australian jurisdiction
• One of the first in the world after the United

States

• ‘Whistleblower’ only appears in the title
• Persons making disclosures
• Target three types of conduct
• Maladministration and waste in the public sector
• Criminal conduct generally (ie public or private sector)
• Substantial risk to public health and safety, or to the environment
• Disclosures of misconduct not protected

WHISTLEBLOWERS PROTECTION ACT 1993

WHISTLEBLOWERS PROTECTION ACT 1993

• Protections
• Immunity from liability where criteria satisfied
• Victimisation (could take action as a tort / EO Act claim)
• Confidentiality - Recipient of disclosure must not divulge identity

without consent except ‘so far as may be necessary to ensure that the matters to which the information relates are properly investigated’

WHISTLEBLOWERS PROTECTION ACT 1993

• Not reviewed for 20+ years
• Poorly understood
• Best practice?

WHISTLEBLOWERS PROTECTION ACT 1993

• State of mind of person making disclosure – reasonable belief
• Cf ICAC Act reporting obligations – reasonable suspicion
• No obligation on most recipients to do anything with a disclosure
• No offence of victimisation
• No obligation on a person other than the recipient of disclosure to maintain

confidentiality

• No protection for disclosing to journalist or member of Parliament
• No oversight of disclosures

ICAC REVIEW OF THE WHISTLEBLOWERS PROTECTION ACT 1993

• Request by then Attorney-General to conduct review of

Whistleblowers Protection Act 1993 (WBP Act)

• Review completed October 2014
• 218 page report (www.icac.sa.gov.au)
• 30 recommendations

ICAC REVIEW OF THE WHISTLEBLOWERS PROTECTION ACT 1993 (WBP ACT)

A new Act to replace the WBP Act. The new Act to address five fundamental issues: 1. The content of a disclosure 2. Who can make the disclosure 3. To whom a disclosure can be made 4. The protections given to a person making a disclosure 5. The action to be taken in respect of the receipt of a disclosure

ICAC PUBLIC INTEGRITY SURVEY: ATTITUDES TO REPORTING WRONGDOING

Conducted in 2018. More than 12,500 respondents:

• 53.2% worried about their job if they report wrongdoing
• 42.8% feel intimidated to report wrongdoing
• 31.5% agreed that reporting causes trouble with colleagues
• 29.2% know of others who have experienced negative consequences from reporting
• 35.7% agreed reporting externally had negative consequences

PUBLIC INTEREST DISCLOSURE ACT 2018 (PID ACT)

• Commenced 1 July 2019
• Incorporates almost all recommendations from WBP Act

review

PID ACT

• Whistleblower = informant
• Disclosures must relate to ‘public interest information’
• Restriction on who can make disclosures and under what

circumstances

• Must be made to a relevant authority

PUBLIC INTEREST INFORMATION

• Either
• Environmental and health information
• Information that raises a potential issue of a substantial risk to the

environment or to the health or safety of the public generally or a significant section of the public: s 4

• Public administration information
• Information that raises a potential issue of corruption, misconduct or

maladministration in public administration: s 4

WHO CAN DISCLOSE?

• Environmental and Health Information
• Anyone
• Reasonable Belief
• Public Administration Information
• Public Officer
• Reasonable Suspicion

TO WHOM CAN A DISCLOSURE CAN BE MADE?

• Relevant Authority
• Section 5(5)
• OPI*
• Minister of the Crown*
• Responsible officer in a public sector agency
• r council
• Ombudsman
• Manager or supervisor of public officer to

whom the information relates

• Auditor General
• Commissioner for Public Sector Employment
• Member, officer or employee of a council (where

information relates to a location within the council area)

• Presiding Officer or House of Parliament
• Member of the Police Force
• Environment Protection Authority
• + more

ACTION TO BE TAKEN

• Every appropriate disclosure must be assessed by recipient and:
• Action taken (or decide to take no further action)
• Action could be to refer to another person or agency
• Notify informant of assessment and action taken, or reason for no action

(1st notification)

• Notify the OPI of the appropriate disclosure and the assessment / action

taken (or not taken)

See Guideline 1

ACTION TO BE TAKEN

• Person taking action, or person to whom disclosure is referred,

must:

• Notify informant of outcome of action (2nd notification)
• Notify the OPI of the outcome of action

See Guideline 2

DISCLOSURE TO JOURNALIST / MEMBER OF PARLIAMENT

• Informant can still be protected under PID Act if:
• They disclose substantially the same information as already disclosed to

a relevant authority, made their identity known and:

• Have not received notification 1 within 30 days; or
• Have not received notification 2 within 90 days (or such longer period as specified

in written notice).

• Believe on reasonable grounds that the information is true.

PROTECTIONS

• Immunity from liability as a result of making an appropriate disclosure.
• Has effect despite any duty of secrecy or confidentiality or any other restriction on

disclosure (whether or not imposed by an Act) applicable to the person: s5(2).

• Confidentiality
• Identity of informant must not be disclosed unless:
• Consent
• So far as may be necessary to ensure that the matters to which the information relates are

properly investigated.

• In accordance with guidelines (see Guideline 3)

PROTECTIONS

• Victimisation
• Criminal offence to personally commit an act of victimisation
• Victimisation can be dealt with as a tort or under EO Act.
• Detriment:

(a) Loss or damage (including damage to reputation) (b) Injury or harm (including psychological harm) (c) Intimidation or harassment (d) Discrimination, disadvantage or adverse treatment in relation to a person’s employment (e) Threats of reprisal s 9(7)

ICAC / OPI

• ICAC can prepare guidelines (s 14)
• OPI is a relevant authority
• OPI receives notifications
• PID Act silent on what OPI is to do with notifications
• Brief review of each notification
• If nature of matter or proposed action justifies further consideration, dealt

with under the ICAC Act.

TRANSITIONAL PERIOD

• By 30 September 2019:
• Appointment of responsible officers (public sector agencies and

councils)

• Responsible Officer training (course approved by ICAC – PID regulations)
• Procedure document (public sector agencies only at this stage)
• Publicly available on internet

See Guideline 4

THANK YOU